NEHAWU obo Makhubele and Others v Ramalatso N.O (JR642/20) (2025) 46 ILJ 1980 (LC) (13 May 2025)
CASE LAW UPDATE
[1] The employees, represented by NEHAWU alleged an unfair labour practice as defined in section 186(2)(a) of the Labour Relations Act (LRA). Their complaint was that they were not receiving the same benefits, specifically pension, bonus, and medical aid contributions, as their colleagues who were employed at salary level 8. Put differently, the employees’ grievance about the unequal provision of benefits was fundamentally a claim for promotion or placement to a higher salary level, as their complaint was about equal work for equal pay, and unequal salaries, rather than a distinct unfair labour practice relating to solely to benefits.
[2] The employees referred their dispute to the Bargaining Council (GPSSBC) after the 90-day period prescribed for lodging such disputes had expired. They argued, however, that their claim was not time barred because the employer’s conduct constitutes a “continuous wrong”, meaning the unfair practice was repeated each month when they continued to receive unequal salaries and benefits.
[3] At the proceedings before the Bargaining Council, the Respondent argued that the dispute had been referred outside the 90-day period prescribed under section 191(1)(b)(ii) of the LRA. The Respondent further contended that, since the employees had not filed an application for condonation for the late referral, the commissioner lacked jurisdiction to arbitrate or entertain the dispute.
[4] The sole issue before the Labour court was whether the commissioner had jurisdiction to arbitrate the dispute, that is, whether the matter had been properly and timeously referred to the Bargaining Council in terms of the LRA.
[5] The employees relied on the authority in SABC v CCMA (2010) 31 ILJ 592 (LAC), where the labour appeal court considered whether an employer’s conduct amounted to a single act or constituted a continuous or repetitive act. They argued, based on this precedent, that the employer’s ongoing payment of unequal salaries and benefits rendered the unfair conduct continuous in nature, and therefore, the referral was not out of time.
[6] The Labour Court reaffirmed that there is only one time event that triggers the referral of an unfair labour practice dispute, and held that:
“[30] In my view, the time to hide behind the alleged “continuous” or “repetitive” nature of the dispute has come to an end. Therefore, whether continuous or non-continuous, labour disputes must be referred within a reasonable time because they are not only inherently urgent in nature but also because delays may cause irremediable prejudice on the part of the other party. A reasonable time in disputes referred in terms of the LRA is determined with reference to section 191. Therefore, even a continuous dispute and/or a dispute with no specific timeframes, in my view, should be referred within a reasonable period. It would be untenable and against the purpose of resolving labour disputes expeditiously to permit or enrol matters without enquiring into the delays, even where the employee became aware of the issue or act or omission which forms the subject of the referral, years before referring the dispute.
[31] For the above reasons, the unfair labour practice dispute was referred outside the prescribed 90-day period. The GPSSBC had no jurisdiction to determine the dispute in the absence of a successful condonation application.”
[7] The key lesson from this case is that employees must act without delay when disputing an alleged unfair labour practice. The dispute must be referred within 90 days of the act or omission that allegedly constitutes unfair labour practice, or within 90 days of the employee gaining knowledge of the act or omission that allegedly constitutes unfair labour practice.